107 F3d 31 Origenes v. Office of Personnel Management

NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.

ON MOTION

BRYSON, Circuit Judge.

ORDER

1

Eustacio Origenes moves for reconsideration of this court's December 21, 1995 order dismissing his petition for review.

2

Origenes' petition for review was dismissed on the ground that the petition was not filed within the 30-day period imposed by statute. See 5 U.S.C. § 7703(b)(1). We now revisit that determination.

3

The certified mail return receipt provided by the Merit Systems Protection Board indicates that the final order in Origenes' case was stamped as delivered by the Philippines post office on May 10, 1995. Origenes' petition for review was not filed until June 14, 1995, beyond the 30-day appeal period. Origenes contends, however, that his representative did not sign for the copy of the Merit Systems Protection Board's final order until May 29, 1995, and that the petition for review is thus timely. Upon close inspection, it appears that there is a second, handwritten date of May 29, 1995 by the addressee's signature on the return receipt. Because of the inconsistencies on the return receipt, we will allow Origenes to proceed.* The Office of Personnel Management is not precluded from filing a motion to dismiss if it chooses.

4

Accordingly,

IT IS ORDERED THAT:

5

(1) Origenes' motion for reconsideration is granted. The court's December 21, 1995 dismissal order is vacated, the mandate is recalled, and Origenes' petition is reinstated.

6

(2) Origenes' motion for leave to proceed in forma pauperis is granted.

7

(3) OPM's brief is due within 30 days of the date of filing of this order.

We note that Origenes has already filed a Fed.Cir.R. 15(c) statement concerning discrimination, a motion for leave to proceed in forma pauperis (IFP), and his informal brief. Origenes' motion for leave to proceed IFP was declared moot after his petition for review was dismissed. We now grant Origenes' motion for leave to proceed IFP